AR20150009860

BOARD DATE: 26 May 2016

DOCKET NUMBER: AR20150009860

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x_____ __x______ __x___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 26 May 2016

DOCKET NUMBER: AR20150009860

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

__________x_______________
CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

BOARD DATE: 26 May 2016

DOCKET NUMBER: AR20150009860

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, waiver of the Post-9/11 GI Bill Transfer of Education Benefits (TEB) service obligation.

2. The applicant states:

a. He retired from the U.S. Army in June 2012. He talked with several education counselors regarding his eligibility to transfer benefits to his spouse prior to processing out of his unit or main post. Everyone told him he met the criteria for benefits and he had attained enough time to transfer benefits.

b. His spouse received multiple letters on 25 April 2015 informing her of her ineligibility for education benefits and that she owed a total of $13,248.53.

c. He contacted the Department of Veterans Affairs (VA) who referred him to the U.S. Army Human Resources Command (HRC), Fort Knox. HRC informed him that he did not fulfill his TEB service obligation.

d. He would have never transferred his benefits if he had known of his ineligibility to receive the benefits. He would have used all his benefits to complete his degree instead of getting student loans to finish his bachelor’s degree when VA benefits ran out. His spouse received an associate’s degree, but she is still unemployed. He does not work in the field in which he received his bachelor’s degree and graduate certificate.
3. The applicant provides six letters from the VA, Debt Management Center, St.Paul, MN, and an account summary.

CONSIDERATION OF EVIDENCE:

1. The applicant retired from the Regular Army on 31 May 2012 in the rank/grade of sergeant first class/E-7. He completed 20 years, 3 months, and 3days of creditable active service.

2. On 8 March 2016, the Section Chief, Finance and Incentives Branch, HRC, provided an advisory opinion. The advisory official recommended disapproval of the applicant’s request to waive the Post-9/11 GI Bill TEB service obligation. The advisory official stated:

a. Public Law 110-252 established legal limitations on the transferability of unused Post-9/11 GI Bill benefits. Further, Section 3319(b), Public Law 110-252, established the requirement for service members to have completed at least 6years of service in the Armed Forces and entered into an agreement to serve at least four more years or the number of years determined by the Service Secretary from the TEB request date.

b. The applicant requested TEB on 4 May 2011. On 9 May 2011, his Regular Army Career Counselor approved the TEB request with a 3-year TEB service obligation. The TEB obligation service end date was 4 May 2014.

c. The applicant requested and HRC approved his voluntary retirement on 12September 2011 and published his retirement orders on 13 September 2011 with an approved retirement date of 31 May 2012.

d. On 20 March 2015, HRC received an inquiry from the VA Regional Processing Office in St. Louis, MO, concerning the applicant not fulfilling the TEB obligation service end date. This office rejected his TEB exception to policy request because he did not fulfill his TEB service obligation.

3. The Army Board for Correction of Military Records forwarded a copy of the advisory opinion to the applicant to allow him to submit comments; however, he did not respond within the allotted timeframe.

4. The applicant provided three letters dated 25 April 2015 and three letters dated 27 May 2015, from the VA Debt Management Center, St. Paul, MN, informing his spouse that her entitlement to education benefits had changed and she received overpayment of $2,528.09, $1,375.00, and $9,345.00 (a total of $13,348.09).

5. The applicant provided an account summary that lists payments on accounts in May 2015 and Stafford Loan repayments made in September 2012 and August 2013.

REFERENCES:

1. Public Law110-252 limits the eligibility to transfer unused benefits to those members of the Armed Forces who are serving on active duty or a member of the Selected Reserve.

a. A Soldier must be currently on active duty or a member of the Selected Reserve at the time of transfer of educational benefits to his or her dependent (on or after 1August 2009).

b. A Soldier must have at least 6years of eligible service in order to transfer education benefits to a spouse and at least 10years of eligible service to transfer to eligible children.

c. A Soldier must also agree to serve the prescribed additional service obligation based on the time the Soldier had in service on 1August 2009.

d. A Soldier must have no adverse action flag and have an honorable discharge to transfer the benefits.

e. A Soldier should not be granted relief based on unawareness of the law, program rules, or procedures unless he or she left the service during the implementation phase (first 90days) of the program. The Army, Department of Defense (DOD), and VA initiated a public campaign plan that generated communications through military, public, and social media venues on the Post-9/11 GIBill and subsequent transfer of education benefits.

f. A Soldier must initially request to transfer benefits on the DOD TEB online database. The TEB online database was operational 29June 2009. Once approved in the TEB online database by the Soldier’s service, the approval information is automatically relayed for VA access. The respective dependent must then submit an application for VA educational benefits, VAForm22-1990e, to request to use the benefits.

2. On 22June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members.

a. The policy states any member of the Armed Forces on or after 1August 2009 who, at the time of the approval of the individual’s request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GIBill and:

(1) has at least 6years of service in the Armed Forces on the date of election and agrees to serve 4additional years in the Armed Forces from the date of election; or

(2) has at least 10years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or

(3) is or becomes retirement eligible during the period from 1August 2009 through 1August 2013. A service member is considered to be retirement eligible if he or she has completed 20years of active duty or 20qualifying years of Reserve service.

b. The policy further states, the Secretaries of the Military Departments will provide active duty participants and members of the Reserve Components with qualifying active duty service, individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GIBill. Additionally, the Services will document and maintain records for individuals who receive supplemental educational assistance under Public Law110-252, section3316.

DISCUSSION:

1. The evidence of record shows the applicant retired from active duty on 31May 2012 after completing 20 years, 3 months, and 3 days of active military service. He attained sufficient service to transfer his education benefits under the Post-9/11 GI Bill TEB program.

2. Any Soldier, on or after 1August 2009, who has at least 6years of service in the Armed Forces on the date of election, and agrees to serve 4additional years in the Armed Forces from the date of election, may transfer their education benefits to their eligible dependents.

3. The HRC advisory opinion states the applicant requested TEB on 4 May 2011 and his Regular Army Career Counselor approved the TEB request on 9 May 2011 with an additional 3-year service obligation. This established a TEB service obligation ending date of 4 May 2014.

4. The applicant retired prior to fulfilling his active service obligation of 4 May 2014 based on his approved TEB application. Therefore, he did not meet the eligibility criteria to retain his TEB incentive.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009860

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009860

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2